Mishpatim: The Value of the Life of a Thief

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    • Tzvi Chulsky 9 months ago

      אם במחתרת ימצא הגנב והכה ומת אין לו דמים; אם זרחה השמש עליו דמים לו, says our parashah[1]. What does this mean, and how do we translate it? The word מחתרת itself is translated by dictionaries as “underground,” but we have not been able to find anybody who interprets this verse that way. The most common approach is roughly: “If a burglar is caught breaking in and the person who catches him hits him and kills him, that person is not guilty of a crime; however, if the sun has risen upon the thief, then that person is guilty of a crime.”

      The second part of that is confusing. The Torah continues that in that latter case, the thief must pay back double whatever he is caught with, and if he cannot afford it, he is sold by the court into slavery. (By the overwhelming majority of interpretations, the proceeds from the sale go toward paying the victim of the burglary.) That may clarify things a bit, but why is there a distinction between the two cases, and what exactly is the distinction?

      Many, like the Rashbam, hold that the first part refers to nighttime, though it does not explicitly say so. The Raavad writes that thieves who come at night know that the owner will be home, and therefore are more dangerous; thieves who come in the daytime are trying to get in when the owner is not home because they are not prepared to fight. The Ramban writes that a thief can be recognized if caught during the day, so the last thing that thief would want to do is fight and bring more attention to himself from potential witnesses. We do recognize this point, as, in a just society, in which the vast majority of the public would support collecting restitution from a thief, if a thief can be recognized, it is likely that restitution can be collected.

      The Rambam, however, holds a different view. He writes unambiguously that when caught in the act, a thief can legally be killed at any time:

      הבא במחתרת, בין ביום בין בלילה–אין לו דמים: אלא אם הרגו בעל הבית או שאר האדם, פטורין. ורשות יש לכול להורגו בין בחול בין בשבת, בכל מיתה שיכולין להמיתו.

      Someone who commits burglary, by day or by night, can legally be killed; if the owner or any other person kills him, they are exempt from punishment. Anybody has permission to kill him, whether on a weekday or Shabbos, in any way in which they are able to kill him.[2]

      The Rambam later addresses the second part of our Torah quote at the beginning, saying that if it is clear (“as day”) that the thief’s intentions are “peaceful,” then one may not kill him. Perhaps he is saying that if the thief just immediately gives up and agrees to pay the restitution required of him, then it becomes a crime again to kill him.

      The gemara[3] brings up the classic case of the pursuer: that one is permitted to use any force necessary, up to and including lethal force, to prevent a pursuer from committing a murder. The Rama and Ran both discuss this topic and come to the conclusion that the thief is fully responsible for any violence that occurs as a result of his break-in.

      Rabbi Yehonatan of Lunel[4] takes this idea one step further: he writes that in the case of a pursuer, one should always use the minimum force necessary; if injuring the pursuer would prevent the murder, then anything more is too much. Rabbi Yehonatan writes that no such scruples are necessary with a thief[5]. It seems that in our tradition, the life of a thief in the act is valued below that of right about anybody.

      Word for word, the language of our verse, which is also the language of much of the subsequent discussion, is “there is no blood in him.” While everybody we have mentioned up to now reads this figuratively as “there is nothing legally/morally wrong with killing him,” Rashi, commenting on the verse, looks at the literal words, and writes הרי הוא כמת מעקרו. In other words, Rashi argues that one who chooses theft is “essentially dead” already. In his commentary to Sanhedrin 72a, Rashi’s language is similar: הרי הוא לך כמי שאין לו דם ונשמה—“he is to you as one who has no blood or soul.” Therefore, Rashi says, you may kill him. In other words, Rashi tells us that the life of a thief is worthless.

      One of the most disturbing things about Western society today is its sanction of theft. Putting aside the full-on approval of coercive government transfers of wealth, petty theft, too, is being treated more and more permissively. One can find countless videos online now, mostly from California, of thieves running into stores, throwing things from the shelf into bags, and running out. Store owners and security personnel would get into trouble if they interfered with the thief; the thief, however, gets into no trouble at all.

      The general advice of law enforcement if one encounters a thief is to allow the thief to get away, and then contact the police. Typically, the police file a report and leave it at that. In certain cases, thieves are later apprehended, and might spend a night or two in jail before being released. In no case is there any restitution to the victim. (Chasing burglars is not as lucrative as writing traffic citations.)

      On the other hand, a property owner who protects his property can get into serious trouble. In the United States, even a property owner who is not home can be liable for injuries a burglar sustains while stealing from him. There have been incidents of property owners simply pointing guns in order to stop burglaries, and then losing lawsuits over emotional distress to the burglar.

      The most famous such story involving an actual criminal charge is that of Patricia and Mark McCloskey of St. Louis, MO. On June 28, 2020, with about 500 Black Lives Matter protesters walking by their house, they stood outside it with guns, warning the protesters that it was their private property, and to keep out. Some heated words were exchanged, but no shots were fired and there were no injuries. Who knows what would have happened without the guns? Three weeks later, St. Louis circuit attorney Kimberly Gardner filed charges against them for unlawful use of a weapon, which can carry a sentence of up to four years in prison and a fine of $10,000.

      Over a year after the charges were filed, and after spending a lot of money on their legal defense, the McCloskeys were pardoned by the governor; but this only happened because of the tremendous amount of publicity the McCloskey case had received, and how bad it made St. Louis look. As one can easily imagine, most such incidents do not result in any relief for the property owner.

      This raises the question of how to behave in an unjust society when one experiences theft. This, of course, falls right in with the question of how to behave in an unjust society in general. In many of the incidents in which the commentators above forbid killing a thief, the decision is predicated on the idea that one lives in a just society in which the rest of Torah law is followed—where, with two witnesses, one can take a burglar to court and recover his assets, with the burglar sold into slavery to raise the funds if necessary. As Rav S.R. Hirsch writes explicitly, “Were it not for the community’s respect for and protection of the law, the way one acts at night would apply to all times.” How does one behave in America, where the burglar will likely face very light consequences if any, and one’s assets will almost certainly not be recovered?

      Most of us who experience theft make a decision that carries a huge cost to ourselves and to our society—we just take it and move on. The legal system gives us few other viable options, and the pursuit of a thief is not worth the sacrifice of our healthy family life. This may be the world we live in, but it is important to remember that this is not what the Torah envisions.

      Those of us raised in Western values and imbued with them must know what to reject. Some problematic Western ideals are often discussed in our communities, and we actively choose Torah values over them; but this topic often gets glossed over. For many of us, our instinct would in fact be to stand by and allow a theft to occur. It is important to remember that in a just society, this would not be the case, and the Torah does not require us to stand aside. The Torah discussion is overwhelmingly about redress to the victim—in many cases twofold, in some cases four- or even fivefold. And some of the most respected voices in our tradition tell us: if you catch a thief in the act, and there is not a clear path to restitution for his victim, feel free to kill him. His life is worthless.

      When we talk about יראה, it is usually translated as “fear of God.” But Rav Hirsch notes the root ראה contained there. יראה, according to Rav Hirsch, is intimately related to perception. We might add that יראה has to do with valuing God’s morality above all others—and perceiving correctly what it is. Sometimes we are so used to the ambient values with which we have grown up that they may seem “kinder” and “gentler” than Torah values. But we are at one of the stages in history when we may begin to see the toxic fallout of such “kindness” and “gentleness.”

      Right before psukei d’zimrah, when we ask God to speedily rebuild our Temple, we say ושם נעבדך ביראה—we will serve you there with יראה. We will have a clear view of Torah values; and we firmly believe that the world will be a better place if more people adhere to them.

      [1] Shmot 22:1-2
      [2] Mishneh Torah, Damages, Robbery, Chapter 9
      [3] Sanhedrin 72a
      [4] c. 1135 – 1210. Lunel is on the southern coast of France.
      [5] He takes this from our verse, as well as from the mishnah Sanhedrin, which asserts that a thief is “judged on account of his ultimate end”; Rabbi Yehonatan expands on one interpretation of this mishnah, which states that while a pursuer must show intent to kill before being killed, a thief can be assumed to have intent to kill.

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